Makkot 2b (ב:) — the Talmud in English

kal va-chomer can be derived to exempt them. And it was stated:

And as for the one who is stoned—

the conspiring witnesses who brought their plot to fruition, since they were proven to be conspiring only after the defendant had been put to death on their testimony—

is not stoned,

because we derive: “as he plotted,” but not “as he did”; once the judgment has been carried out, the conspiring witnesses are not punished—

all the more so, a conspiring witness

who comes to have the defendant stoned but did not have him stoned [

since he was proven to be conspiring before the defendant was put to death]—

is it not obvious that he should not be stoned?!

And if we derive a kal va-chomer in this manner, we would uproot the entire Torah law requiring punishment of a conspiring witness when the judgment was concluded on his testimony but the act has not yet been carried out.

Rather, it is clear—

the matter is clear—

as

we explained initially:

the reason for the exemption is not a kal va-chomer, but rather that the Torah said, “to do to him,” only to him, and not to his offspring. In the case of disqualification from priesthood, “as he plotted” does not apply, since he sought to disqualify him with a disqualification extending to future generations, whereas he himself is not punished with such a disqualification.

We learned in the Mishna:

“We testify concerning so-and-so that he is liable to exile, etc.”

And the Gemara discusses this:

From where are these matters

that conspiring witnesses do not go into exile in his place?

Reish Lakish said:

because

the verse says

(Deuteronomy 19): “

He shall flee to one of the cities.”

Since the word “he” functions as an exclusion, it comes here to teach that only

he,

the one who killed unintentionally, is the one who flees into exile,

but not

the conspiring

witnesses.

Whereas

Rabbi Yohanan said:

there is no need for an exclusion from the words of the verse. Rather, one can derive that conspiring witnesses do not go into exile

by a kal va-chomer:

And just as he,

the inadvertent killer,

who performed an act

of inadvertent killing with his own hands—if he had done this

intentionally,

his law would be that he

does not go into exile.

All the more so

they,

the conspiring witnesses,

who performed no act

with their hands, since the transgression of false testimony consists only of speech and not of a physical act, although, on the other hand, their transgression was

intentional—

is it not obvious that they should not go into exile

for an intentional act?!

The Gemara rejects Rabbi Yohanan’s kal va-chomer:

And it is—

that which establishes the opposite!

The very argument of the kal va-chomer from which Rabbi Yohanan proved that conspiring witnesses are exempt from exile is itself the reason to obligate them to go into exile!

For we can reason in the opposite direction: The reason that one who kills intentionally does not go into exile is not leniency; on the contrary, it is because of the severity of his act, as exile is not a sufficient punishment for him. If so, one can say that specifically

he,

the killer,

who performed an act,

is addressed by the Torah as follows: since he did it

intentionally, he shall not go into exile—

so that he will not have atonement

through exile for the intentional act of murder, which is a grave matter and for which exile does not atone.

However,

they,

the conspiring witnesses,

who performed no act

with their hands through their testimony, but only through the testimony of their mouths, it is reasonable that

even intentionally they should go into exile—

so that they will have atonement

for their plot.

Since their actions are not so severe, as they did not carry it out with their hands but only with their mouths, it is possible for their speech to be atoned for through the punishment of exile.

And once Rabbi Yohanan’s kal va-chomer has been rejected, we conclude:

Rather, it is clear

that the matter is clear: the reason that conspiring witnesses do not go into exile is

as Reish Lakish said,

who derived it from the exclusion in the verse, “He shall flee.”

Ulla said: What is the hint for conspiring witnesses in the Torah?

The Gemara wonders: Do we really need

a hint for conspiring witnesses

in the Torah?

Is it not an explicit passage in the Torah?

“And you shall do to him as he plotted to do to his brother”!

And we explain:

Rather,

this is what Ulla asked:

A hint concerning

those

conspiring witnesses

whom we learned about in our Mishna, who cannot be punished with the punishment explicitly stated in the Torah, “And you shall do to him as he plotted to do to his brother,” but whose law is

that they are flogged—

what is the hint that they are flogged

in the Torah, from where?

And Ulla said about this: We learn a hint for it from that which

is written

in the passage concerning those liable to lashes [Deuteronomy 25:2]: “When there will be a dispute between people, and they approach the court, and they judge them.

And they vindicate the righteous and condemn the wicked.”

And the verse concludes:

“And it shall be, if the wicked is liable to be flogged—

the judge shall have him recline and strike him before him”!

The words of the verse require explanation: Why is the righteousness of the righteous and the judges’ determination between the two people mentioned here? Does

the fact that “they vindicated

the judges

the righteous and condemned the wicked”

cause the continuation of the verse,

“And it shall be, if the wicked is liable to be flogged”?!

Everything depends on the wickedness of the wicked person, and not on the judicial decision in the dispute between the wicked person and the righteous person opposing him. If the wicked person committed a transgression for which the punishment is lashes, he is flogged; and if not, he is not flogged!

Rather,

necessarily, the verse is not speaking about the judges’ decision in a dispute between a righteous person and a wicked person,

but rather

about

witnesses

who condemned the righteous person by testifying falsely against him.

And then,

the verse says that if afterward

other witnesses

came and established that the first witnesses were conspiring,

and

through establishing the first witnesses as conspiring,

they vindicated

the witnesses who disproved them

the righteous person who was initially righteous,

who had been righteous from the outset,

and rendered [

made]

these

conspiring witnesses

wicked—

that is, when this establishment as conspiring warrants only lashes, such as when it is impossible to carry out upon these conspiring witnesses the punishment stated in the verse, “as he plotted to do to his brother,” then—

“And it shall be, if the wicked is liable to be flogged,”

the court flogs them.

And we ask:

Why not derive

that conspiring witnesses are flogged

from “You shall not bear false witness,”

since they transgressed the prohibition “You shall not bear false witness against your fellow”; why do I need the verse “And it shall be, if the wicked is liable to be flogged”? The punishment of “as he plotted,” established for this prohibition, cannot be carried out when they sought to render him a son of a divorced woman, and if so, its punishment reverts to that of all prohibitions, for which the punishment is lashes?

And we answer:

Because it is

the prohibition “You shall not bear false witness”

a prohibition that does not involve an act.

For one transgresses it only through the speech of his testimony, and not through a physical act.

And for every prohibition that does not involve an act—

one is not flogged for it.

Therefore, the verse “And they vindicated, and it shall be, if the wicked is liable to be flogged” is needed to reveal that one is flogged for the prohibition “You shall not bear false witness,” even though it does not involve an act [Tosafot below, 4b, s.v. “And the Rabbis”].

The Sages taught: Four matters were stated concerning conspiring witnesses:

a.

They are not rendered sons of a divorced woman or sons of a halutza,

when they testified this concerning a kohen in order to disqualify him, and were proven to be conspiring.

b.

And they do not go into exile to the cities of refuge,

when they testified concerning a person that he was liable to exile, and were proven to be conspiring.

c.

And they do not pay the ransom,

when they testified concerning an ox accustomed to goring that it had killed a person, thereby obligating its owner to pay a ransom, and were proven to be conspiring.

d.

And they are not sold as Hebrew slaves,

if they testified concerning a person who stole and had nothing with which to pay, and the court concluded his judgment on the basis of their testimony, to sell him for his theft, and they were proven to be conspiring.

In the name of Rabbi Akiva they said: They also do not pay

conspiring witnesses

on the basis of their own admission.

For if they were proven to be conspiring in court, but the defendant had not yet sued them to pay him for their plot to obligate him,

and they went to another court and admitted there that they had already been proven to be conspiring, they are not obligated on the basis of their admission, since the payments of conspiring witnesses are considered a monetary penalty, and one who admits liability for a monetary penalty is exempt.

The Gemara now explains the reason for the exemption in each of the laws of the beraita.

a.

They are not rendered sons of a divorced woman or sons of a halutza, as we said—

because we derive “to him,” but not to his offspring!

b.

And they do not go into exile to the cities of refuge, as we said—

because we derive “he shall flee,” but not conspiring witnesses.

c.

And they do not pay the ransom,

because

they hold that the ransom—

is atonement.

The obligation to pay the ransom is a payment of “atonement,” in order to atone for the owner of the ox because his ox killed a person.

But these,

these witnesses,

are not subject to atonement,

since their ox did not kill a person, and therefore a payment of atonement is not applicable to them. The Gemara asks:

Who is the tanna

who holds that the payments of

“ransom”

are, by law,

atonement?

?

Rav Ḥisda said:

The position of

Rabbi Yishmael, son of Rabbi Yoḥanan ben Beroka, is the one reflected here.

As it was taught: Regarding ransom it is stated, “

And he shall give the redemption of his soul”—

the value of the injured party.

The value of the injured party—

That is, the value of the person killed by the ox is assessed: how much he would have been worth if sold in the marketplace as a slave. The owner of the ox pays that amount to the heirs of the deceased.

Whereas

Rabbi Yishmael, son of Rabbi Yoḥanan ben Beroka, says:

the owner of the ox pays

the value of the one who caused the damage,

his own value, to the heirs of the deceased.

Is it not that they disagree over this—

that one

the first tanna, who said that he pays the value of the injured party,

holds that the ransom is monetary

payment for having damaged the deceased, and therefore he pays his value to the deceased’s heirs?

Whereas

the other

Rabbi Yishmael, son of Rabbi Yoḥanan ben Beroka, who said that he pays the value of the one who caused the damage,

holds that the ransom is atonement,

to atone for the heavenly-imposed death penalty to which the owner of the ox became liable. Therefore, the owner of the ox pays his own value, thereby redeeming himself from death.

The Gemara rejects this:

Rav Pappa said: No!

That is not what they disagree about.

Rather,

it is possible to say that

everyone

holds that

the ransom is atonement.

It is just that

here, concerning this matter,

the manner of assessment alone,

is what they disagree about:

One holds that

the amount of the atonement

is assessed according to the value of the injured party.

Its reason will be explained below.

Whereas

the other holds: It is assessed according to the value of the one who caused the damage.

The Gemara now explains the reasoning of the disputants:

What is the reason of the Rabbis?

What is the first tanna’s source in the Torah for assessing the ransom according to the value of the injured party? Since he too holds that the ransom is atonement, it would seem more logical to assess the value of the one who caused the damage, so that it will serve as his atonement in place of his dying himself—

It is stated

the expression

“hashata”

means placement,

upward,

with regard to one who strikes a pregnant woman and causes her miscarriages, who must pay the husband the value of the miscarried fetuses. And it is stated concerning him that he must pay “as the husband of the woman shall impose upon him.”

And it is stated

the expression

“hashata”

means placement,

downward,

with regard to the obligation of kofer payable to the owner of an ox that killed a person, as it is written: “If a ransom shall be imposed upon him.”

And one derives the obscure matter from the explicit one:

Just as there,

as with regard to one who strikes a pregnant woman,

the assessment of

his payments is made

according to the value of the injured party,

as he pays the value of the miscarried fetuses that were injured,

so too here,

with regard to one whose ox killed a person, the payment of the kofer is assessed

according to the value of the injured party,

and he pays the value of the deceased.

And

if

Rabbi Yishmael,

who holds that he gives the value of the one who caused the damage, derives his view from the following:

“And he shall give the ransom of his soul”

is written.

The verse teaches that the kofer is the value of the soul of the owner of the damaging ox.

But

the Rabbis,

who do not derive this in that manner, say:

No,

indeed,

“the ransom of his soul”

is written,

meaning that the kofer is atonement for the soul of the owner of the ox.

However, when we assess

the atonement obligation, how much he must pay,

we assess it according to the value of the injured party.

For by paying a kofer equal to the value of the injured party, the soul of the one who caused the damage achieves atonement for death at the hands of Heaven.

d.

And they are not sold as Hebrew slaves.

Rav Hamnuna thought to say: This applies

that the conspiring witnesses are not sold as slaves only

where he himself has

when the person whom they conspired to obligate has money, in which case, even had the witnesses not been found conspiring, he would not have been sold for his theft.

For since he would not be sold,

since the defendant himself would not have been sold as a slave, therefore

they,

the conspiring witnesses,

likewise would not be sold.

They too would not be sold as slaves, even if they did not have money with which to pay him the punishment for their conspiracy—that they had conspired to obligate him to pay money—since they had not conspired to sell him as a slave, but only to cause him monetary loss, by obligating him to pay. For this money, which they must pay for their conspiracy, they are not sold.

But where he himself does not have

money, so that had they not been found conspiring he would have been sold for his theft as a slave, then

even though they themselves have

money, they are not exempted by making payment, like a thief who pays and is not sold; rather,

they are sold

as slaves, since they conspired to have him sold for his theft.

And we challenge this: Why should they be sold as slaves when he does not have money but they do?

Let the witnesses say to him,

the defendant: After all,

if you had had,

if you had had money with which to pay,

would you have been sold?

Would you have been sold? You could have avoided being sold as a slave had you paid.

And if so,

we too,

will pay money for having conspired to obligate you because of the theft, and

we will not be sold,

so that our דין will not be more severe than what we conspired to impose upon you.

Rather,

because of this difficulty, the Gemara establishes this statement differently:

Rav Hamnuna thought to say: This applies

that the witnesses are not sold when they testified that he stole and were found conspiring,

where he has

when one of the two sides has money:

either

there is money

belonging to him,

the person about whom they testified, and they did not conspire to have him sold,

or

there is money

belonging to them,

the conspiring witnesses, who are exempted by making payment, just as the defendant could have been exempted by making a monetary payment.

But where he does not have,

where there is no money

neither for him nor for them—

they are sold,

the witnesses are sold as slaves.

Rava said to Rav Hamnuna: They are not exempt because it is possible to avoid the sale through payment; rather, this matter is derived from the Torah:

For

when

the Merciful One said

with regard to a thief who does not have money with which to pay,

“he shall be sold for his theft,”

we expound: Only

for his theft

is he sold,

but not for his conspiracy!

Therefore, even when neither the thief nor the witnesses have money, the witnesses are not sold as slaves.

[With regard to lashes, see the note ].

We learned in the beraita above:

They said in the name of Rabbi Akiva,

even if they admit it themselves, they do not pay.

And we explain:

What is Rabbi Akiva’s reason?

He holds

that the payment obligation of conspiring witnesses, for seeking to cause him financial loss,

is a fine,

for the reason explained shortly.

And a fine—

one who

admits it

does not pay on his own admission.

Rabba said: Know

that their payment is considered a fine and not an ordinary monetary obligation:

For they did not perform an act

they did not kill him, and the witnesses did not actually cause him financial loss, nor was he killed or deprived of money on their testimony; they merely conspired and testified—

and

nevertheless they

are killed

and

pay!

A payment without damage is considered a fine.

Rav Naḥman said: Know

that it is a fine,

for the money remains in the owners’ possession,

since they have not yet taken it out on the basis of the witnesses’ testimony,

and they pay!

And a payment without loss is a fine.